Calcutta High Court (Appellete Side)
Sanjit Biswas & Anr vs Anil Kumar Biswas on 17 December, 2018
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CO No. 2956 of 2016
SANJIT BISWAS & ANR.
-Versus-
ANIL KUMAR BISWAS
For the Petitioners: Mr. Ashok Kumar Roy,
For the Opposite party: Mr. Soumyadeep Biswas,
Heard on: December 07, 2018.
Judgment on: December 17, 2018.
BIBEK CHAUDHURI, J. : -
1.Opposite party/preemptor filed an application under Section 8 of the West Bengal Land Reforms Act (herein after refer to as 'the said act') claiming pre-emption of the suit land which was sold out by one Smt. Smritirekha Biswas in favour of the petitioners/premptees by executing a registered deed of sale dated 16th July, 2010. In the application under Section 8 of the said Act, it was pleaded by the opposite party/preemptor that the vendor of the petitioners was one of the co- sharers in respect of the suit land along with the petitioner and the said property was sold out to the petitioners/premptees who are stranger purchasers without giving any notice under Section 5(4) of the said Act.
2. The aforesaid application under Section 8 of the said Act gave rise to Misc Preemption Case No.52 of 2010 before the learned Civil Judge (Junior Division), 1st Court at Krishnagar, Nadia. The present petitioners/premptees/opposite parties in the said pre-emption case entered appearance and contested the said case by filing written objection denying all the allegations made out by the opposite party/premptor in his application under Section 8 of the said Act. It was specifically pleaded by the petitioners/premptees that their venor Smt. Smritirekha Biswas held and possessed 1/4th well demarcated share of the property which she inherited from her father. The property was amicably partitioned between the co-sharers and name of the said Smritirekha Biswas was mutated in respect of her share in recently published record of rights. The said vendor of the petitioners/premptees transferred her entire share in favour of them. Therefore, the claim of the opposite party for pre-emption could not be entertained by the court. The learned Civil Judge (Junior Division), 1st Court at Krishnagar, Nadia allowed the said petition under Section 8 of the said Act on contest. The petitioners herein challenged the aforesaid order in Misc Appeal Case No.12 of 2015 which was also dismissed on contest by the learned Additional District Judge, 5th Court Krishnagar, Nadia by an order dated 24th April, 2015.
3. In the instant revision, the order dated 24th April, 2015 passed by the learned Additional District Judge, 5th Court Krishnagar, Nadia in Misc Appeal No.12 of 2015 is under challenge.
4. Only point for consideration involved in the instant revision is as to whether the right of pre-emption under Section of the said Act could be exercised in a case where the entire interest in the subject land is transferred by the raiyat, if the other conditions stipulated in the aforesaid section are fulfilled.
5. It is pertinent to mention at the outset that on 7th December, 2018, when the instant revision was taken up for hearing, learned advocate for the petitioners prayed for an adjournment of the hearing of the case. However, this court passed over the matter. When the instant revision was again called on for hearing, learned advocate for the petitioners was found absent.
6. Since the point for determination involves purely a question of law, I intend to dispose of the instant revision on merit without merely dismissing the same for default.
7. In the case of Naymul Haque @ Nainul Haque (C.O 1164 of 2015), a coordinate bench of this court came across with two conflicting decisions on the issue in hand delivered by two other coordinate benches. In the case of Kinkar Mahato vs. Sahan Mahato reported in 2005 (3) ICC 5, a learned judge of this court was pleased to hold that a co-sharer raiyat cannot seek for pre-emption, if entire share of a plot of land of a raiyat is transferred. However, in a subsequent case of Biswanath Sarkar & Anr. vs. Sunit Kumar Saha reported in (2013) 3 WBLR 271 (Cal) and also in Sk. Sajhan Ali vs. Sk. Saber Ali reported in (2015) 3 CHN 689 (Cal). Another learned Single Judge held that if a co-sharer is holding an undivided, undemarcated share in the plot of land and such co-sharer transfers entire share in a plot of land to any person other than the co-sharer, the other co-sharer would have the right of pre-emption.
8. In view of conflicting of decisions of two different coordinate benches the case of the Naymul Haque @ Nainul Haque (supra) was referred to a larger bench for a conclusive decision.
9. Accordingly the case of Naymul Haque @ Nainul Haque (supra) along with series of applications having similar issue for adjudication were taken up for consideration by division bench of this court.
10. The aforesaid cases under reference was disposed of by the division bench of this court by a common judgment dated 8th August 2018 wherein it is held that if a raiyat transfer his/share entire undivided share in a plot of land to any person other than the co-sharer, the co- sharer will have the right of pre-emption.
11. In view of the above decision of the division bench of this court which is binding upon by this court, I can safely conclude that the instant revision is devoid of any merit and is, therefore liable to be rejected.
12. Before I part with, I like to record that the petitioners raised a question that the suit land was amicably partitioned amongst the co-sharers. The learned Appellate Court rightly refused to accept such plea in view of the specific provision of Section 14 of the said Act which provides that partition of a plot of land among co-sharers of raiyat owning it can only be made by either a registered instrument, a decree or an order of a court.
13. In the instant case, the suit land was not partitioned by a registered instrument. Therefore, the case of the petitioners relating to amicable partition among the co-sharers can also not be entertained.
14. In view of the above discussion, I find no merit in the present application and the same is dismissed, however, with any order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Bibek Chaudhuri, J.)